United States of America v. Zachary Clark, a/k/a Little Rue

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZACHARY CLARK, a/k/a Little Rue,
Defendant - Appellant.
No. 21-6034
(D.C. No. 5:18-CR-00260-SLP-46)
(W.D. Okla.)
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ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, MATHESON and EID, Circuit Judges.
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After entering into a plea agreement that included a waiver of his right to
appeal, Zachary Clark pleaded guilty to conspiring to possess with intent to distribute
500 grams or more of methamphetamine, in violation of 21 U.S.C. § 846. The
district court sentenced Clark to 480 months in prison. Clark has appealed, and the
government has moved to enforce the appeal waiver under United States v. Hahn,
359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We grant the
government’s motion.
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
September 14, 2021
Christopher M. Wolpert
Clerk of Court
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Clark agreed in the plea agreement to waive his right to appeal his plea, his
sentence, “and the manner in which the sentence is determined”—provided the
sentence was not above the advisory guideline range. R. vol. I at 186. In exchange,
the government agreed to dismiss several counts. The plea agreement contained the
following stipulation: “The parties also agree that the time Defendant has spent in the
custody of the U.S. Marshal Service since his arrest on December 19, 2018, should count
towards any sentence imposed as a result of his conviction in this case.” Id. at 184.
At a change-of-plea hearing, the district court accepted Clark’s guilty plea and
found: (1) that he was competent to enter the plea, (2) that he did so voluntarily and
understood fully the rights he agreed to waive, and (3) that there was a factual basis
for the plea. The advisory sentence under the Sentencing Guidelines was life in
prison, but the district court sentenced Clark to 480 months.
Hahn sets forth three factors to evaluate an appeal waiver: “(1) whether the
disputed appeal falls within the scope of the waiver of appellate rights; (2) whether
the defendant knowingly and voluntarily waived his appellate rights; and (3) whether
enforcing the waiver would result in a miscarriage of justice.” 359 F.3d at 1325.
A defendant’s waiver is not knowing and voluntary if it is the product of a material
misrepresentation, United States v. Williams, 919 F.2d 1451, 1456 (10th Cir. 1990),
or if there was a mutual mistake relating to the basic assumption on which the plea
agreement was made, United States v. Frownfelter, 626 F.3d 549, 555 (10th Cir.
2010). Clark contends the plea agreement contained a material misrepresentation or
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at the very least a mutual mistake. We hold there was no such misrepresentation or
mistake here. 1
The stipulation that Clark’s pre-sentence detention “should count towards any
sentence imposed,” R. vol. I at 184, was followed by a caveat in the very next
numbered paragraph:
Defendant acknowledges and understands that the Court is not bound
by, nor obligated to accept, these stipulations, agreements, or
recommendations of the United States or Defendant. And, even if the
Court rejects one or more of these stipulations, agreements, or
recommendations, that fact alone would not allow Defendant to
withdraw [his] plea of guilty.
Id. The district court reiterated this same point at the change-of-plea hearing.
R. vol. 3 at 22 (“THE COURT: And do you understand that you do not have a right
to withdraw your plea of guilty if I don’t go along with any suggestions in regard to
sentencing in the plea agreement? THE DEFENDANT: Yes, sir.”).
Despite Clark’s understanding that the district court was not bound by the
stipulation, he argues it was still a misrepresentation, or at the very least a mutual
mistake, because the parties stipulated to a legal impossibility. Clark maintains it
was not legally possible for his pre-sentence detention to count toward his federal
sentence because federal law prohibits a defendant from receiving credit for a
pre-sentence detention that has already been credited against another sentence.
1 The parties’ briefs spent considerable time debating whether Clark’s
arguments are subject to plain error review. We hold only that Clark has failed to
carry his burden of proving that his plea was not knowing and involuntary. See
Hahn, 359 F.3d at 1329.
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See 18 U.S.C. § 3585(b). He argues the government knew when it entered the plea
agreement that Clark was receiving credit towards a state sentence while his federal
case was pending, so he could not have received any credit toward his federal
sentence as the plea agreement contemplated.
We reject Clark’s argument. It was not legally impossible for Clark’s
pre-detention time to count towards his sentence. As the Presentence Report
observed, if the district court wished to honor the parties’ stipulation, it could have
granted a downward departure under the Sentencing Guidelines. R. vol. 2 at 41
(explaining that USSG § 5G1.3(d) allows for a downward departure in an
extraordinary case involving pre-sentence detention served in connection with a
separate conviction). Indeed, the district court chose to do exactly that for two of
Clark’s co-defendants. Although it chose not to do so in Clark’s case, Clark
knowingly took that risk. We therefore reject Clark’s assertion that the plea
agreement contained a misrepresentation or mistake.
Clark concedes that his appeal falls within the scope of the appellate waiver,
and he does not address the miscarriage-of-justice factor. We therefore need not
address those factors. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir.
2005).
The government’s motion to enforce the appellate waiver is granted and this
appeal is dismissed.
Entered for the Court
Per Curiam
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